Secondary Victim Claims ' Where Are We Now?

• Published date: 12 February 2024
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Personal Injury, Professional Negligence
• Law Firm: Deka Chambers
• Author: Laura Johnson KC and Francesca Kolar

The Supreme Court decision in Paul v Royal Wolverhampton NHS Trust [2024] UKSC 1 was eagerly anticipated because of the impact it was likely to have on claims arising in a clinical setting. What was not anticipated was that the Supreme Court would take the opportunity to look at how some of the other control mechanisms that apply in secondary victim claims have been interpreted and applied by the courts and consider whether those decisions were right.

As a result not only does the decision in Paul give an answer to a 30 year debate about whether secondary victim claims can be pursued in circumstances where the claimant has witnessed an event of injury or death caused by a failure by a medical professional to treat a loved one, but it also reviews and refines aspects of the control mechanisms more generally.

This article aims to answer the question: where are we now in relation to secondary victim claims, both in the clinical context and more generally? It provides an overview of the law relating to secondary victim claims and summarises the position now, providing practical advice about what claimants need to prove and the types of claim that survive the decision in Paul.

What is a secondary victim?

A primary victim is a person who is injured by the negligence of another. Most compensation claims are concerned with primary victims.

Secondary victim claims are an exception to the general rule that the common law does not recognise one person as having any legally compensable interest in the physical well-being of another. It is this rule that explains why a person who suffers a psychiatric illness as a result of the pressures of caring for their loved one who has been injured by a tortfeasor cannot themselves bring a claim against that tortfeasor. The only other exception is the statutory cause of action for bereavement contained in the Fatal Accidents Act 1976.

Over time the law has developed¹ to allow a class of claimants, known as secondary victims, to bring claims where they have been "no more than the passive and unwilling witness of injury caused to others"².

The secondary victim's claim is not parasitic upon any claim by a primary victim. In fact it may be that there was no primary victim at all because no one was injured in the event that gives rise to the secondary victim claim. Witnessing imperilment of a loved one can suffice³.

In order to establish a secondary victim claim the claimant must show that sufficient proximity exists between the claimant and the defendant such that a duty of care arises:

"that description ["secondary victim"] must not be permitted to obscure the absolute essentiality of establishing a duty owed by the defendant directly to him - a duty which depends not only upon the reasonable foreseeability of damage of the type which has in fact occurred to the particular plaintiff but also upon the proximity or directness of the relationship between the plaintiff and the defendant."⁴

In the early 1980s this area of law extended one step further, enabling those who had not witnessed the primary event but who had come upon its immediate aftermath, to bring a claim in certain circumstances. This is known as "the immediate aftermath extension" and its principles are set out in McLoughlin v O'Brian [1983] 1 AC 410. In that case the issue was whether the claimant could recover damages when she was not present at the scene of a road accident but attended hospital shortly afterwards and witnessed injuries caused to family members. The House of Lords held unanimously that the claimant was entitled to recover compensation for her injuries, on the basis that it would be arbitrary and unjust to draw a line between a person who was present when their family were seriously injured in an accident, or in the claimant's case immediately rushed to the scene and came upon its aftermath. In that case it was of relevance that when the claimant came upon her husband and surviving children (one having died in the accident) they were "in the same condition" as they would have been had she come upon them at the roadside "covered with oil and mud, and distraught with pain"⁵.

What are the control mechanisms?

In order to understand Paul and its impact on the law of secondary victim claims it is necessary to consider briefly the authorities in which this type of claim developed, because it is an area of law that has been influenced by public policy and, as a result, does not follow the familiar gateways of the law of negligence. In particular it is important to understand how the courts have decided secondary victims must show proximity in the relationship with the defendant in order to establish a duty of care. This issue is governed by rules established in the case of Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310, derived from the development of earlier authority.

In McLoughlin Lord Wilberforce identified three elements in any claim which had to be considered to keep the liability of defendants within reasonable bounds: (1) the class of persons whose claims should be recognised; (2) the proximity of those persons to the accident and (3) the means by which the injury was caused.

Alcockwas decided 9 years after McLoughlin. The claims arose from the Hillsborough disaster in 1989 when 97 Liverpool football fans died, and others were seriously injured at the Hillsborough football stadium in Sheffield. Two of the claimants had been present at the ground and witnessed the crush, others saw the disaster unfold on the television, and three of the claimants identified the body of their relative at the mortuary. The House of Lords held that none of the claimants were entitled to succeed. Four of five members of the appellate committee gave reasoned speeches and there is no clear lead speech, but it is that of Lord Oliver that has attracted the greatest focus in cases that have followed.

Lord Oliver's speech is the origin of the distinction between primary and secondary victims, identifying a broad category of cases where the claimant "was involved, either mediately or immediately, as a participant" - primary victims - and those where the claimant was "the passive and unwilling witness of injury caused to others" - secondary victims⁶.

Lord Oliver emphasised that reasonable foreseeability of harm alone, while a necessary ingredient of the duty of care, is not in itself sufficient. There must be sufficient proximity between the parties to make it just to impose a duty. What is the law looking for in this regard? In answering this question judges often turn to the classic description of proximity contained in Donoghue v Stevenson [1932] AC 562, 580:

"You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question."

Lord Oliver went on to identify the common features of all previous reported cases where claims had succeeded⁷:

• A marital or parental relationship between the claimant and the primary victim;
• That the injury for which damages are claimed arose from the sudden and unexpected shock to the claimant's nervous system [emphasis added];
• That the claimant was either personally present at the scene of the accident or was in more or less the immediate vicinity and witnessed the aftermath shortly afterwards;
• That the injury suffered arose from witnessing the death of extreme danger to, or injury and discomfort suffered by the primary victim;
• Lastly, that there was not only an element of physical proximity to the event but a close temporal connection between the event and the claimant's perception of it, combined with a close relationship of affection between the...